SUMMARY: We, the U.S. Fish and Wildlife Service, have received an application from
NiSource, Inc. (Applicant), for an incidental take permit under the Endangered Species
Act of 1973 (ESA). If approved, the permit would be for a 50-year period and would
authorize incidental take of 10 species, 9 of which are federally listed and 1 of which is
proposed.

The applicant has prepared a multispecies habitat conservation plan (MSHCP) to
cover a suite of activities associated with operation of a natural gas pipeline system; the
MSHCP also analyzes 33 additional species and provides for measures to avoid take of
those species. The Applicant has requested concurrence with their determination that
activities will not take these 33 species if implemented in accordance with their MSHCP.
We request public comment on the application and associated documents.

DATES: To ensure consideration, please send your written comments on or before [INSERT DATE 90 DAYS AFTER THE DATE OF PUBLICATION IN THE FEDERAL REGISTER].

SUPPLEMENTARY INFORMATION: We have received an application from NiSource, Inc., for an incidental take permit (ITP) (TE02636A) under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.; ESA). If approved, the permit would be for a 50-year period and would authorize incidental take of the following 10 species:

Species

Current Listing Status

Indiana bat (Myotis sodalis) -

Endangered

Bog Turtle (Glyptemys muhlenbergii) -

Threatened

Madison cave isopod (Antrolana lira)

Threatened

Nashville crayfish (Orconectes shoupi)

Endangered

Clubshell (Pleurobema clava)

Endangered

Fanshell (Cyprogenia stegaria)

Endangered

James spinymussel (Pleurobema collina)

Endangered

Northern riffleshell (Epioblasma torulosa rangiana)

Endangered

Sheepnose (Plethobasus cyphyus)

Proposed

American burying beetle (Nicrophorus americanus)

Endangered

The Applicant has prepared an MSHCP to cover a suite of activities associated with operation of a natural gas pipeline system in the States of Delaware, Indiana, Kentucky, Louisiana, Maryland, Mississippi, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia.

The MSHCP also analyzes 33 additional species and provides for measures to avoid take of those species. The Applicant has requested concurrence with their determination that activities will not take these 33 species if implemented in accordance with their MSHCP:

(a) issuance of an incidental take permit to the Applicant for the take of nine federally listed species and one species that is proposed for listing and

(b) implementation of the associated MSHCP, which includes the
evaluation of 33 other listed species that may occur in the MSHCP covered lands;

and

(2) evaluate the application for permit issuance, including the MSHCP, which provides measures to minimize and mitigate the effects of the proposed incidental take of the 10 species and to avoid take of the remaining 33 species included in the MSHCP.

Background

NiSource Inc., headquartered in Merrillville, Indiana, is engaged in natural gas
transmission, storage, and distribution, as well as electric generation, transmission, and
distribution. NiSource Inc.’s wholly owned pipeline subsidiaries, Columbia Gas
Transmission, LLC; Columbia Gulf Transmission Company; Crossroads Pipeline Company; Central Kentucky Transmission Company; and NiSource Gas Transmission
and Storage Company (companies referred to collectively as “NiSource” throughout the
MSHCP), are interstate natural gas companies whose primary operations are subject to
the Natural Gas Act (15 U.S.C. 717) and fall under the jurisdiction of the Federal Energy
Regulatory Commission (FERC) and the U.S. Department of Transportation (USDOT).
NiSource is seeking coverage under an Incidental Take Permit under section 10(a)(1)(B)
of the ESA to take species in the course of engaging in gas transmission and storage
operations activities (“activities”).

NiSource contacted the U.S. Fish and Wildlife Service (Service) in late 2005 to
discuss options under which it could receive authorization under the ESA to take
federally listed species incidental to engaging in certain natural gas transmission
activities. Operation and maintenance of NiSource’s facilities requires numerous
activities conducted on an annual basis. On average, NiSource has approximately 400
projects annually that require some form of review pursuant to the ESA, typically under
Section 7 of the ESA. Most of these consultations have resulted in a determination that
projects either would not affect or would not likely adversely affect listed species or
critical habitat. The majority of these projects have been addressed through informal
consultations with the Service Field Offices. These activities include routing right-ofway
(ROW) maintenance; facility inspection, upgrade, and replacement; forced
relocations; and expansion projects.

Specifically, NiSource wanted to explore options for ESA compliance because it
believes that its numerous individual project-focused ESA Section 7 consultations are
inefficient and time consuming, and that the traditional consultation approach to regulatory compliance may be too limited a tool to achieve the ESA’s conservation goals.
For example, when the impacts of natural gas pipeline activities on protected species are
quantified for a discrete project, the conservation benefits provided to the species are
similarly discrete. Further, the project-by-project approach does not provide the tools
necessary to take a holistic, landscape approach to species protection.

NiSource’s MSHCP analyzes impacts to the 43 species resulting from three
general categories of activities related to NiSource’s natural gas systems: (1) General
operation and maintenance; (2) safety-related repairs, replacements, and maintenance;
and (3) expansion. The covered activities addressed in the MSHCP are those activities
necessary for safe and efficient operation of NiSource’s pipeline system, many of which
are performed pursuant to the regulations and guidance of the FERC and the U.S.
Department of Transportation (USDOT), and other regulatory authorities. The
geographic scope of this MSHCP will extend across the Service’s Midwest, Southeast,
and Northeast Regions, covering the general area stretching from Louisiana
northeastward to New York where NiSource natural gas systems are in place. For
purposes of this MSHCP, NiSource’s natural gas pipeline system does not include any
electric transmission lines that support the transmission of natural gas.

The MSHCP provides both enhanced conservation of listed species and
streamlined regulatory compliance requirements for NiSource’s activities, as well as a
means to avoid, minimize, and/or mitigate for take of the 10 species caused by covered
activities. It also documents measures to be undertaken to avoid adverse effects to the
remaining 33 species for which take is not anticipated. The goals of the MSHCP’s
conservation strategy are to protect MSHCP species and their habitats through the implementation of an environmental compliance program (e.g., practices, standards,
training, etc.) that meets or exceeds Federal, State, and local regulations and
requirements; to enhance the conservation of MSHCP species through the application of
rigorous planning, adaptive management, and sound scientific principles; and to support
species conservation actions using a landscape approach, maximizing conservation
benefits to take species and the ecosystems that support them. The MSHCP is intended
to satisfy applicable provisions of the ESA pertaining to federally listed species
protection, while improving the permitting efficiency for the construction, operation, and
maintenance of NiSource’s natural gas pipelines and ancillary facilities through a
predictable and accepted structure under which its activities may proceed.

Purpose and Need for Action

In accordance with NEPA, we have prepared an Environmental Impact Statement
(EIS) to analyze the impacts to the human environment that would occur if the requested
permit were issued and the associated MSHCP were implemented. The EIS for this
action is intended to function programmatically. Specifically, it will provide a general
evaluation of impacts. Due to the broad scope of the action, however, future, site-specific
evaluations of impacts will be more fully evaluated and analyzed later through the tiering
process. Traditionally, tiered NEPA analyses are completed by the agency that issues the
programmatic EIS and Record of Decision (ROD). Here, the Service will issue a ROD
on the environmental impacts of the proposed action, i.e., issuance of the incidental take
permit.

We do not anticipate that the cooperating agencies responsible for authorizing,
permitting, or licensing aspects of NiSource’s future activities, such as FERC, the U.S.
Army Corps of Engineers (USACE), the U.S. Forest Service (USFS), and the National
Park Service (NPS), will sign or adopt that ROD. Rather, pursuant to the Council on
Environmental Quality’s NEPA regulations, such agencies will be encouraged to “tier”
off the programmatic EIS by adopting relevant portions of that document. Given the very
general nature of the EIS’ analysis, cooperating agencies will be required to analyze
project impacts more comprehensively as part of their respective permitting processes.
The level of such review will depend on the scope and impacts of the specific NiSource
project under consideration.

Proposed Action

Section 9 of the Act prohibits the ‘‘taking’’ of threatened and endangered species.
However, provided certain criteria are met, we are authorized to issue permits under
section 10(a)(1)(B) of the Act for take of federally listed species, when, among other
things, such a taking is incidental to, and not the purpose of, otherwise lawful activities.
Under the Act, the term ‘‘take’’ means to harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect endangered and threatened species, or to attempt to engage in any
such conduct. Our implementing regulations define ‘‘harm’’ as significant habitat
modification or degradation that results in death or injury to listed species by
significantly impairing essential behavioral patterns, including breeding, feeding, or
sheltering (50 CFR 17.3). Harass, as defined, means “an intentional or negligent act or
omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not
limited to, breeding, feeding, or sheltering” (50 CFR 17.3).

The MSHCP analyzes, and the ITP would cover, the various manifestations of
take attributable to NiSource activities. For the 10 take species, this would primarily
involve harassment, harm, and killing, and, for most species, the take that would occur
would include all three subcategories depending on the specific action. If issued, the ITP
would authorize incidental take consistent with the Applicant’s MSHCP and the permit.
To issue the permit, the Service must find that NiSource’s application, including its
MSHCP, satisfies the criteria of section 10(a)(1)(B) of the ESA and the Service’s
implementing regulations at 50 CFR 13, 17.22, and 17.32.

The areas covered (“covered lands”) by the Applicant’s MSHCP include much of
NiSource’s pipeline system. NiSource’s operating territory traverses 14 States, ranging
from New York to Louisiana. The covered lands overlay NiSource’s onshore pipeline
system in the States of Delaware, Indiana, Kentucky, Louisiana, Maryland, Mississippi,
New Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, and
West Virginia. This pipeline system includes approximately 15,562 miles of buried steel
pipe ranging in diameter from 2 to 36 inches, 117 compressor stations, and 6,236
measuring and regulating stations. In addition, NiSource operates and maintains
underground natural gas storage fields in conjunction with its pipeline system. Currently,
NiSource operates 36 storage fields comprised of approximately 3,600 individual storage
wells in Maryland, West Virginia, Ohio, Pennsylvania, and New York. Approximately
95 percent of NiSource’s annual projects will occur within its existing ROW (typically 50
11
feet wide, with the buried pipe(s) generally in the center) and result in little ground
disturbance.

A portion of NiSource’s annual activities to operate, maintain, and expand its
natural gas transmission system will likely deviate from NiSource’s existing ROW.
Therefore, NiSource has proposed a 1-mile-wide corridor centered on NiSource’s
existing facilities as the best approach for defining this portion of the covered lands. This
1-mile-wide corridor encompasses all of NiSource’s onshore pipeline facilities and the
majority of its existing storage fields. However, 9 large storage fields that NiSource
wishes to expand are located outside the corridor in 12 counties, namely Hocking,
Fairfield, Ashland, Knox, and Richland Counties, Ohio; Bedford County, Pennsylvania;
Allegany County, Maryland; and Kanawha, Jackson, Preston, Marshall and Wetzel
Counties, West Virginia. NiSource has not identified, for the Service or the public, the
locations of the storage fields in these counties, based on its determination that the
information is highly sensitive (for Homeland Security purposes) and constitutes
confidential business information. Therefore, the covered lands identified in the MSHCP
and DEIS have been defined broadly to include, in their entirety, each of the 12 counties
in which these storage fields occur.

Although a 1-mile-wide corridor and the boundaries of the 12 counties are used to
delineate the covered lands and to identify the potential presence of threatened and
endangered species for inclusion in this MSHCP, the MSHCP does not contemplate
unlimited construction or other surface disturbance within the corridor or the counties.
NiSource will not utilize, clear, or disturb the entire 1-mile-wide corridor or the storage
field counties, or even a significant portion of such corridor or counties. The 1-mile-wide
12
corridor and county boundaries were chosen to provide needed flexibility for both the
realignment of existing facilities to accommodate future forced relocations (typically
resulting from public road construction/maintenance projects) and the minimization of
environmental impacts while aligning future replacement and expansion projects.

Because of the nature of this MSHCP, in terms of the scope of covered lands and
permit duration, NiSource has not been able to predict with certainty where or when a
given covered activity would occur. Thus, the species analyses rely on multiple
assumptions to estimate the reasonable worst-case-scenario take for each species
considered. Given the uncertainty of certain assumptions, it is possible that the modeling
may underestimate the amount of take. To address this, Chapter 7 of the MSHCP
provides adaptive management to assess the validity of assumptions and implement
specified contingencies. On the other hand, the reasonable worst case scenarios may err
on the side of overestimating impacts of the covered activities on the take species. In
practice, as the MSHCP is implemented, NiSource anticipates that by utilizing avoidance
and minimization measures, the actual take numbers will be much less than the amount
estimated. However, obtaining the take authorization and having a process to avoid,
minimize, and mitigate the impact of take that does occur will provide NiSource with the
flexibility to be efficient in its operations, while providing a benefit to the take species
through the MSHCP’s landscape-level conservation approach and mitigation strategy.

NiSource’s landscape-level mitigation goal for this MSHCP may be facilitated by
the use of a green infrastructure assessment for strategic conservation planning developed
for NiSource by The Conservation Fund (TCF), with input from all 14 cooperating States. Green infrastructure offers a conceptual approach for identifying mitigation
opportunities at an ecosystem level. Specifically, it is a strategically planned and
managed network of natural lands, working landscapes, and other open spaces that
conserve ecosystem values and functions and provide associated incidental benefits to
human populations. The MSHCP articulates strict criteria for the selection of future
mitigation projects. The Green Infrastructure Assessment will assist NiSource in
identifying the most beneficial projects to be implemented, consistent with the MSHCP’s
mitigation prescriptions.

NiSource and the Service sought input from the Federal agency cooperators (the
Service, FERC, USACE, USFS, and NPS) on the MSHCP and the agencies’ NEPA
approach. The MSHCP also has a variety of components for which we seek public
review and input. The Madison Cave Isopod, for example, is an elusive underground
species that dwells in karst (cave) habitats. The Service has limited understanding of the
effect of pipeline activities on some species, such as Madison Cave Isopod, particularly
with respect to such things as the reach of surface disturbance on the karst systems.
Moreover, the large scale, both geographic and temporal, of the MSHCP brings with it
uncertainty and the need to make assumptions in the absence of absolute scientific data.
We, therefore, seek input on calculation of the reasonable worst-case scenarios to assess
the anticipated amount of take, the mitigation approach, specific criteria to be used to
select future projects to compensate for the impacts of the takings, and the adequacy of
the proposed funding mechanism, in addition to the adaptive management strategy and
approach that NiSource will use to address changed circumstances over the life of the
plan.